A Local Authority v DS  EWHC 1442 (Fam) the President of the Family Division (Sir Nicholas Wall) has issued guidance on handling of applications to the Legal Services Commission for the funding of ISWs.
ISWs do not come cheaply. A solicitor in the case obtained quotes for the work. One ISW wanted £4800 and another wanted £5229 plus VAT. It is the Legal Services Commission (LSC) which would normally have to fund this. If the court indicates the need for such a report, application is then made to the LSC for funding. As part of the Family Justice Review, the courts are moving to a situation in which an expert report is only requested if it is necessary to resolve the case. Any party wishing to instruct an expert is expected to explain to the court why the expert evidence proposed cannot be given by Social Services undertaking a core assessment or by the Children's Guardian.
Payments for such experts are governed by
the Community Legal Services (Funding) Order 2007 Schedule 5 and this limits payment by the LSC to an ISW to £30 per hour though there is provision (in Schedule 6) for more to be paid in exceptional circumstances - (see paras. 38 to 41 of the judgment). Paragraph 38 is particularly interesting:
"To the mind of the lawyer it remains curious that an
administrative body can effectively render nugatory a judicial decision
taken in what the court perceives as the best interests of a child.
Where the party or parties who seek to instruct an expert are publicly
funded, however, there is no doubt that the LSC has the power, given to
it by Parliament, to refuse to fund the instruction or to fund the
instruction in part only. Moreover, the LSC undoubtedly has the power,
deriving from the same source, to cap the level of fees which may be
expended by the expert at a given level. That is undoubted the law.
Lawyers may complain that this is an unfair state of affairs, or that
they cannot find experts who will work at the rates laid down. Their
remedy, if they take the view that the decision of the LSC is Wednesbury unreasonable or can be struck down for any other public law reason, is to apply for judicial review."
The guidance issued by the President is at para. 45 of the judgment. Sir Nicholas emphasized repeatedly the need for reasons to be given though reasons do not need to be lengthy or elaborate. They must, however, explain to anyone reading them why the decision maker has reached the conclusion he or she has particularly if the expert is seeking to be paid at rates higher than those set out in the Funding Order. Also, emphasis was placed on the essence of speed in proceedings relating to children.
In the future, the use of ISWs seems set to become very much the exception with requests for their use being strictly scrutinised by the courts and with the court stating clearly the issues to be addressed by the ISW.